Case Law: Flood v Times Newspapers, Supreme Court allows “Reynolds” appeal – Hugh Tomlinson QC

In a unanimous decision ([2012] UKSC 11) the Supreme Court today allowed the appeal of  Times Newspapers Limited against a decision of the Court of Appeal ([2010] EWCA Civ 804) which had held that held that it could not rely on Reynolds qualified privilege.  The Supreme Court restored the decision of Mr Justice Tugendhat ([2009] EWHC 2375 (QB)) who had ruled, on the hearing of a preliminary issue, that the Times was entitled to rely on the defence of Reynolds qualified privilege in relation to the printed publication of the article about the claimant.

Background

The claimant was a Detective Sergeant in the Metropolitan Police.  An anonymous source claimed that Russian oligarchs had paid a police officer for information about extradition requests. The source stated that the police officer “could be” the claimant and that he had reported this to the police.  In April 2006 the journalists concluded that the police might not be properly conducting an investigation into the claimant. They approached the claimant and other persons concerned with the allegations which caused an investigation to commence. On 2 June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The claimant sued for libel over both print and website publications.

The claimant contended that the article had wrongly alleged that there were strong grounds to believe, or reasonable grounds to suspect, that he had abused his position as a police officer by accepting bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges.  The Times sought to justify the allegations by reference to the meaning that he had been the subject of internal police investigation and that there were grounds that justified such investigation. The investigation found no evidence to support the allegations against the claimant.

Judgment

All five Supreme Court justices gave separate judgments.   A number of issues arose on the appeal.  Lord Phillips identified three:

• how to approach the question of the meaning of the article,
• whether it was in the public interest to refer to the details of allegations made to the police; and
• what verification was required to discharge the requirements of responsible journalism [22-25].

In relation to the “meaning”, issue, Lord Phillips held that the seriousness of the allegation being made is an important factor in the assessment of where the balance is to be struck between the desirability that the public should receive information and the potential harm caused if  the individual is defamed [48].  In this case the parties agreed that the meanings of the article for which they respectively contended – that there were strong grounds to investigate the respondent or that there were grounds justifying a police investigation – were so close that it was not necessary to choose between them  for the purposes of the preliminary issue.  However, where a publication is capable of bearing a range of meanings, that a journalist must have regard to the full range when deciding whether to publish and when attempting to verify [51].  Lord Brown agreed with this approach [111].

The second issue was whether and in what circumstances it was in the public interest to refer to the fact that accusations had been made to the police about a named person. Lord Brown described this as “the only real point of principle” in the case [114].

Lord Phillips considered the various formulations of the test of “public interest” in Reynolds ([2001] 2 AC 127) and Jameel ([2007] 1 AC 359), agreeing with Lady Hale’s formulation in the latter case that

“There must be some real public interest in having this information in the public domain. But this is less than a test that the public “need to know”, which would be far too limited” [147].

The claimant aruged that although the general subject matter of the article – police corruption – was of public interest, as a matter of principle the publication of the facts giving rise to the allegations being investigated was not [53].  This contention was rejected by all the members of the Court. The story was of high public importance and the allegations against the respondent were the whole story [68]. They were published with the legitimate aim of ensuring the allegations were properly investigated by the police in circumstances where the journalist had good reason to doubt that they were being [69].

In relation to the naming of the claimant, Lord Phillips noted that he was not a public figure and said that he would not have accepted that identifying the Claimant was in the public interest had it been possible to publish the story without such details [73]. However,  he held that on the facts that it was not possible to report the story without naming the claimant and doing so “did not conflict with the test of responsible journalism or with the public interest” [74].

Lord Mance held that journalistic judgment and editorial freedom were entitled to weight when considering how much detail should be published [170] but any journalist must consider carefully the public interest in doing so when allegations have not been investigated or their accuracy determined [177].

Lord Dyson considered that it was generally likely to be in the public interest to publish the details of allegations of police corruption, provided the test of responsible journalism was met [195].  He agreed with Lord Mance that the court should be slow to interfere with an exercise of editorial judgment and would hold on that ground too that the naming of the individual was justified in this case [199].

Lord Brown found this issue difficult but was ultimately “persuaded that there is no principle of law which precludes TNL from invoking Reynolds privilege in a case such as this” [118].  However, he went on to say that

“not every anonymous denunciation to the police will attract Reynolds privilege. Far from it. That, as Mr Price QC for Sergeant Flood was at pains to point out, would indeed be a “charter for malice”. But where, as here, the denunciation is of a public officer, relates to a matter of obvious public importance and interest, and may justifiably appear to the journalists to be supported by a strong circumstantial case, it seems to me properly open to the trial judge to find the defence made out” [119] .

In relation to verification, all the Justices agreed with the Court of Appeal that this was not a case of reportage where the public interest lies in the fact that an allegation has been made.  The Judge had been wrong to hold that Jameel showed that there was no obligation to verify.

In this case, in contrast to the “reportage” position:

“the public interest in the allegation that is reported lies in its content. In such a case the public interest in learning of the allegation lies in the fact that it is, or may be, true. It is in this situation that the responsible journalist must give consideration to the likelihood that the allegation is true. Reynolds privilege absolves the publisher from the need to justify his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it” [78].

Verification involved a subjective and objective element.  The responsible journalist had to satisfy himself that the allegation was true and his belief in the truth had to be the result of a reasonable investigation [79].  The hard and fast principles relating to the defence of justification do not apply when considering verification. The existence of grounds for suspicion can be based on information from reliable sources or may reasonably be inferred from the fact of a police investigation [80].

In this case the judge found that the supporting facts were true and verified as such (Lord Phillips at [87] and Lord Mance at [167]).  It was reasonable for the journalists to conclude from the police investigation and application for a search warrant that the accusation against the respondent might be wellfounded. There was a strong circumstantial case against him [98].

The Supreme Court declined to address the question of how, as a matter of principle, the Court of Appeal should approach a challenge to a decision of a trial judge on a defence of Reynolds privilege: whether or not it was like an attack on the exercise of a discretion.  Lord Phillips said that he would wish to hear oral argument on the point before reaching a conclusion [106] and Lord Mance agreed [182].  Lords Clarke and Dyson both indicated that they had intended to express an opinion on the point but had been persuaded that it was not right to do so in this case.

The Court noted that time had not permitted it to hear argument on the second limb of the appeal, in relation to the continued publication of the article on the website after the completion of the investigation of the Claimant, but indicated that it would hear further submissions if so requested [107].

Comment

The decision of Mr Justice Tugendhat in Flood was the first occasion on which a national newspaper had successfully relied on a Reynolds defence.  The press will welcome the Supreme Court’s decision that the defence was, indeed, made out.  This is the third time that Reynolds privilege has been considered by the highest court and the second time that the defence has succeeded on final appeal.

As in Reynolds and Jameel there are five separate judgments.  The ratio of the decision appears in the judgment of Lord Mance (with whom Lords Clarke [184] and Dyson [190]) agreed.  He concluded a comprehensive analysis of the case by saying that the judge was justified in regarding the article

“as covered by the public interest defence recognised in Reynolds and Jameel. The starting point is that the investigation into possible police corruption in the area of extradition of a Russian oligarch to Russia informed the public on a matter of great public interest and sensitivity. TNL journalists were motivated by a concern to ensure that the investigation was being or would be properly pursued. They had themselves investigated the sources and nature of the allegations exhaustively over a substantial period as far as they could. The article would have been unlikely to be publishable at all without details of the names and transactions involved in the alleged corruption. The facts regarding such transactions were accurately stated” [179]

Although the article was damaging to DS Flood’s reputation, it was balanced in content and tone, it did not assert the truth of the allegations, it gave DS Flood the opportunity of commenting and the editorial judgment of the editors merited respect [180].   Lord Mance concluded that there was:

“no good reason to depart from the judge’s overall assessment that publication of the article was in the public interest, despite its immediate adverse effect on DS Flood’s reputation” [181].

As mentioned above, the Supreme Court declined to express a view on the proper approach on appeal to the judge’s “balancing” decision.  The Court of Appeal were clear in their view that the “balancing” carried out by the first instance judge between freedom of expression and the right to reputation was not a matter of “discretion” but a matter of law on which appellate judges were entitled to form their own views ([45-49] per Master of the Rolls, [107] per Moore-Bick LJ).   Although Lord Phillips recognised that there were “cases where there is room for a legitimate difference of judicial opinion as to what the answer should be” [104] no view was expressed as to whether this approach should be taken in Reynolds cases.   It was, however, recognised that the comments of the Court of Appeal on the point were obiter and they will be open for re-examination the next time the issue arises in a Reynolds case.

This is an interesting but not radical decision.  It establishes no new point of principle.  As in Jameel the highest Court has reaffirmed the basic outline of the defence as it is set out in of the Reynolds case.  Nevertheless, the Supreme Court emphasised – in part by reliance on case law from the Court of Human Rights – that the purpose of the defence is “to promote greater freedom for the press to publish stories of genuine public interest“.   The overall message is that a fact sensitive “balancing” of interests must be carried out but that the judge must always have in mind the need to promote responsible public interest journalism.